[Adopted 9-18-1981 by Ord. No. 81-22; amended in its entirety 5-17-2007]
The purpose of this article is to provide a mechanism whereby
the State of Wisconsin or any other state and the Tribe can have returned
to the jurisdiction of each sovereign persons who have been charged
with violation of its criminal laws and who have fled. Further, this
article shall provide a mechanism for tribal law enforcement officers
to temporarily detain a person subject to a felony warrant from another
jurisdiction prior to formal commencement of extradition proceedings.
Upon enactment of this article, Section 11.95 ME of Menominee
Nation Ordinance 79-14 is repealed.[1]
A.
Whenever any person authorized by state law to request extradition
presents a written complaint based upon affidavit to any Judge of
this Tribe alleging that a person on this Reservation was present
in the demanding state at the time of commission of the alleged crime
and that thereafter the accused fled to the Reservation as a haven
from prosecution, or with having been convicted of a crime in that
state and having escaped from confinement, or having broken the terms
of his or her bail, probation, extended supervision or parole, attaching
to said complaints a certified copy of an indictment or information
and an arrest warrant, the Tribal Court Judge shall issue a warrant
directed to any peace officer commanding the officer to apprehend
the person named therein, wherever the person may be found on this
Reservation, and to bring the person before the same or any other
Tribal Court Judge who may be available in or convenient of access
to the place where the arrest may be made to answer the complaint,
and a certified copy of the sworn complaint and affidavit upon which
the warrant is issued shall be attached to the warrant.
B.
Any tribal law enforcement officer who, in the course of his or her duties, comes into contact with a person who is subject to a valid outstanding felony arrest warrant issued by any state court is authorized to detain said person. Immediately upon detaining said person, the tribal law enforcement officer shall notify the jurisdiction that issued the felony arrest warrant of such detention and determine whether said jurisdiction intends to pursue extradition of such person pursuant to Subsection A. If the requesting jurisdiction states its intent to pursue extradition, the issuing jurisdiction's warrant will be given full faith and credit and be treated in the same manner as a tribal arrest warrant for a period of 48 hours, excluding holidays and weekends. If, after 48 hours, excluding holidays and weekends, the issuing jurisdiction has not obtained a tribal arrest warrant pursuant to Subsection A of this section, the issuing jurisdiction's warrant will no longer be given full faith and credit and the person shall be released. If the issuing jurisdiction states that it does not intend to pursue extradition, the person shall be released, unless subject to detention pursuant to tribal law.
If from the examination before the Judge it appears that the
person held is the person charged with having committed the crime
alleged and that person held has fled from justice and is using the
Menominee Reservation as a haven from prosecution, the Judge shall
inform the person of the demand made for his or her surrender and
that the person has the right to obtain legal counsel at his or her
expense, and if the person desires to test the legality of his or
her arrest, the Judge of the Tribal Court shall fix a reasonable time
to be allowed the person within which to commence an action for habeas
corpus. When such action is commenced, notice thereof, and of the
time and place of hearing thereon, shall be given to the prosecuting
officer of the Tribe and to the agent of the demanding state.
Pending the hearing for habeas corpus stated above, or pending
the arrival of the authorized agent of the demanding state, the Judge
shall confine the person to tribal jail. The cost of keeping said
prisoner shall be borne by the demanding state.
If after the time allowed or commencement of habeas corpus petition pursuant to § 132-7 has run and the person has not commenced such an action, or if after the hearing on the habeas corpus petition, the Judge finds that the arrest was lawful, or after the person waives their right to a hearing pursuant to § 132-10 of this article, the keeper of the tribal jail shall turn over said prisoner to the authorized officer of the demanding state.
Any person arrested on the Reservation pursuant to this article may waive all rights to hearings under this article and voluntarily consent to return the demanding state by executing or subscribing in the presence of a Judge of the Tribal Court a writing which states that the person consents to return to the demanding state. Before such waiver shall be executed, the Judge shall inform the person of the grounds for his or her arrest and his or her right to a hearing pursuant to § 132-7 of this article.
If a criminal prosecution has been instituted against such person
under the laws of the Tribe and is still pending, the Tribal Judge
in his or her discretion may surrender the person on the demand of
the executive authority of another state or may hold the person until
the person has been tried and discharged or convicted and punished
by the Tribe.
The Menominee Tribal Prosecutor is authorized to seek the return
to this Reservation of any person charged with a crime on the Reservation
or a person convicted of a crime on this Reservation who has escaped
confinement or broken terms of his or her bail, probation, extended
supervision or parole and who has fled the Reservation to avoid prosecution.
The Menominee Tribal Chief of Police or his or her authorized agent
shall have the authority to receive from any state any person whose
extradition to the Menominee Tribe has been authorized by said state.
Any person subject to extradition under this article, as amended,
who claims to be Indian shall have the burden of proof for the validity
of such claim by presenting evidence in written form when such claim
is made that he or she is "Indian" as that term is defined for criminal
jurisdiction purposes pursuant to federal law.
Any search warrant issued by a Circuit Court in the State of
Wisconsin authorizing a search within the Menominee Indian Reservation
presented to a Judge of the Menominee Tribal Court shall be treated
as an order of the Menominee Tribal Court if the Judge finds the following:
A.
The underlying criminal action to which the warrant relates took
place outside the boundaries of the Menominee Indian Reservation;
and
B.
The owner or occupant of the premises or property to be searched
is suspected of being involved in the commission of the underlying
crime related to the search warrant.
